Petition
for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and
Commissions of Local Government: ADMINISTRATIVE
– Code Enforcement – construction
license – Code enforcement board is not
required to follow strictly all rules of evidence in conducting its
administrative hearings – Competent substantial evidence
including documentary evidence and testimony of investigator supported hearing officer’s findings and conclusions –
Hearing officer did not depart from the
essential requirements of law by imposing the fine on Petitioner as an
individual. Petition denied.
Helms v. Pinellas County Construction
Licensing Board, No. 09-000042AP-88B (Fla. 6th Cir. App.
Ct. August 18, 2010).
NOT FINAL UNTIL TIME EXPIRES FOR
REHEARING AND, IF FILED, DETERMINED
IN
THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN
AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE
DIVISION
DAVID HELMS,
Petitioner, Ref. No.: 09-000042AP-88B
v.
UCN: 52009AP000042XXXCV
PINELLAS COUNTY
CONSTRUCTION
LICENSING BOARD,
Respondent.
_________________________________/
ORDER DENYING PETITION
FOR WRIT OF CERTIORARI
THIS CAUSE is before the Court on a Petition for Writ of
Certiorari filed by Petitioner David Helms on August 14, 2009. Respondent, Pinellas County Construction
Licensing Board (“PCCLB”), filed a response.
Petitioner appeals a Special Master Final Order rendered by the PCCLB
imposing a fine plus investigative costs for contracting to perform
contractor’s work without a license. Upon
consideration, this Court finds that the Petition for Writ of Certiorari must
be denied for the reasons set forth below.
Petitioner is the principal of two construction companies
but does not hold a construction license individually. The first corporation, Signature Built Construction
Inc. (“Construction Inc.”), is qualified to engage in contracting by the
license of a separate contractor. [1] The second corporation, Signature Built by David
Helms, Inc. (“Signature Built”), is not qualified by any license to engage in
contracting.
On October 18, 2005, Signature Built by David Helms
entered into a contract to build a residential home for John and Linda Wolbert.
The first page of the contract
identifies Signature Built by David Helms, Inc., as the “Builder” or
“Seller.” The contract further states: “Signature Built Construction Inc., license
numbers CBC1251933/QB32131 is the Contractor/Builder of record for Signature
Built by David Helms, Inc. and is joined under this agreement.” At the end of 2007, Signature Built filed a
construction lien on the property for an unpaid balance. Upon a complaint by the Wolberts, the PCCLB
investigated and issued a citation for violation of Pinellas County Code (“Code”)
section 22–14(1).
Helms
appealed the citation issued by the PCCLB, and the Special Master conducted a
hearing on July 15, 2009. Upon
consideration of the testimony of the PCCLF investigator, Sunbiz business
records, the construction contract, and documents related to the contract, the Special
Master concluded that these documents showed Signature Built had contracted
without a license in violation of section 22–14 and that Helms’s other company,
Construction Inc., was not a party to the contract.
In
reviewing the Special Master’s order, this Court is limited to determining (1)
whether procedural due process has been accorded, (2) whether the essential
requirements of law have been observed, and (3) whether the administrative
findings are supported by competent substantial evidence. Vichich
v. Dep’t Highway. Safety & Motor Vehicles, 799 So. 2d 1069, 1073 (Fla.
2d DCA 2001). It is not the job or
function of the circuit court to reweigh evidence and make findings when it
undertakes a review of an administrative decision. Dep’t
of Highway Safety & Motor Vehicles v. Satter, 643 So. 2d 692, 695 (Fla.
5th DCA 1994). The hearing officer
assigned to hear the case by the department is “the trier of fact and in the
best position to evaluate the evidence.”
Dep’t of Highway Safety &
Motor Vehicles v. Favino, 667 So. 2d 305, 309 (Fla. 1st DCA 1995), cited in Dep’t of Highway Safety & Motor
Vehicles v. Silva, 806 So. 2d 551 (Fla. 2d DCA 2002).
Petitioner
argues that the Special Master did not observe the essential requirements of
law by admitting and considering two unauthenticated Sunbiz internet business
record printouts, as well as other hearsay evidence, over the Petitioner’s
objection. Florida Statutes governing local code enforcement
boards state that “[f]ormal rules of evidence shall not apply, but fundamental
due process shall be observed and shall govern the proceedings.” § 162.07(3), Fla. Stat. As a code enforcement board within the
meaning of the statute, the PCCBA is not required to follow strictly all rules
of evidence in conducting its administrative hearings.
Petitioner next argues that the Special Master
lacked competent substantial evidence to support his findings and conclusions. Specifically, Petitioner contends that Construction
Inc., a licensed contractor, was a party to the Agreement and obtained all
permits for the work. Petitioner cites
to the Agreement’s statement that Construction Inc. “is the Contractor/Builder
of record for Signature Built . . . and is joined under this agreement.” Change orders to the contract referenced
Construction Inc.’s license numbers but identified Signature Built as the
builder. The Claim of Lien and the Final
Affidavit of Contractor filed on the property also named Signature Built as the
contractor and were signed by Petitioner as the President of Signature
Built. No signature block appears for Construction
Inc. on any of the documents submitted. Such documents and the testimony of the
investigator provide competent and substantial evidence on which the hearing
officer could have based his decision.
Petitioner argues finally that the Special Master
departed from the essential requirements of law by imposing the administrative
fine on Petitioner even though he signed the contract in his corporate
capacity. Section 22-14 of the Code
enumerates violations for “any person or entity” to contract without being in
compliance with licensing statutes, allowing for both corporate and personal
responsibility, and section 22-12 references procedures for “any person” cited
for a violation. The underlying Florida
licensing statute also states that “[n]o person shall” do the enumerated acts
in that statute. § 489.127, Fla. Stat. Therefore, this court finds that the hearing
officer did not depart from the essential requirements of law by imposing the
fine on Petitioner as an individual in accordance with the plain meaning of the
statute.
Accordingly, it is
ORDERED AND
ADJUDGED that the Petition for Writ of Certiorari is DENIED.
DONE AND ORDERED
in Chambers, at St. Petersburg, Pinellas County, Florida, this ________ day of
August 2010.
Original
order entered on August 18, 2010 by Circuit Judges Amy M. Williams, Peter
Ramsberger, and Pamela A.M. Campbell.
Copies
furnished to:
Warren
J. Knaust, Esquire
2167
Fifth Avenue North
St.
Petersburg, FL 33713
Attorney
for Petitioner
Jason
C. Ester, Esquire
Assistant
County Attorney
315
Court Street, Sixth Floor
Clearwater,
FL 33756
Attorney
for Respondent